Who will take care of your affairs if you are incapacitated? Preventative Power of Attorney
Maura Hillen, MBE, Hillen Real Estate
Most of us have an up-to-date Will but how many of us have thought about who will manage our affairs if we somehow become incapacitated and are unable to make decisions for ourselves?
Under Spanish law there exists the concept of a Preventative Power of Attorney (Poder Preventivo) which is similar in function to an Enduring or Lasting Power of Attorney recognised in UK law. A Preventative Power of Attorney allows you to designate another person to represent your interests in the event that you lose the capacity to do so yourself.
There are two types of preventative powers of attorney:
A preventative power of attorney in the strictest sense where the designated person can only act on your behalf, from the moment that you are incapacitated, according to the terms set out in the power.
A preventative power of attorney that can be used by your representative from the moment it is granted, or from a date specified with the power, without waiting for you to become incapacitated. The power will continue to be in force if you do become incapacitated.
How does a Preventative Power of Attorney differ from a general Power of Attorney?
A general power of attorney ceases to have effect if you lose the mental capacity to make decisions for yourself. A Preventative Power of Attorney continues to have effect if you lose the capacity to make decisions for yourself.
Why make a Preventative Power of Attorney?
By making a preventative power of attorney YOU are choosing who you want to manage your affairs (financial, medical etc) in the event that you are unable to make such decisions for yourself.
In Spain, as in other countries, in the absence of such a document your family or advisers would need to apply to the courts to have someone appointed to act on your behalf. The appointed guardian will need to provide a report of their activities to the court every year and is subject to the supervision of the State Prosecutor.
Is a Preventative Power of Attorney enforceable outside of Spain?
If you have assets outside of Spain or become incapacitated in another country it may be complicated to enforce a preventative power in another country. Expert legal advise is recommended.
Please note that this note is just to tell you how the land lies and is not to be construed as being legal advice. At Hillen Real Estate work with a network of trusted legal professionals, so that if you need help please do not hesitate to contact us at firstname.lastname@example.org and we can point you in the right direction.